Should U.S. citizens in Al Qaeda be tried for treason?

Former Secretary of Defense Robert Gates, shown with a drone in Kandahar,… (Scott Olson / Associated…)

In my Sunday column, I wrote that it’s past time for the Obama administration to subject its nomination of suspected terrorists for the “kill list” -- secret death warrants, to put it bluntly -- to some form of independent review, at least when the targets are U.S. citizens.

The administration has assured Congress and the public that it makes those decisions carefully. A leaked Justice Department “white paper” spelled out the criteria: a U.S. citizen on the list must be a “senior operational leader” of Al Qaeda or an allied group who is plotting violence against the United States. "An informed, high-level official of the U.S. government" must determine that capturing the target isn't feasible.

Those are sensible standards -- but when the decisions are made in secret inside the executive branch, they still boil down to “trust us.” The Obama administration concedes that U.S. citizens, even in Al Qaeda, are entitled to due process before their government tries to kill them. But it hasn't been clear where that process is to be found -- and there hasn’t been much pressure from Congress to make it clearer. Few politicians have rushed to the defense of designated terrorists. The American Civil Liberties Union has argued that Al Qaeda members deserve a day in court, but has found few allies.

Until now. Suddenly, in one of those strange evolutions of the Washington consensus, establishment figures are calling for independent review of the kill list. The latest, last weekend, was former Defense Secretary Robert M. Gates, who said on CNN: “I just think some check on the ability of the president to do this has merit.” Gates said he was confident that the Obama administration was stringent in its application of its own rules, “but who is to say about a future president?”

The chairman of the Senate Intelligence Committee, Dianne Feinstein (D-Calif.), says she wants to explore the idea of a secret court to review the kill list. The chairman of the Senate Judiciary Committee, Patrick Leahy (D-Vermont), is interested, too. So are several Republicans, including Charles Grassley of Iowa and Libertarian Rand Paul of Kentucky.

But legal scholars have warned that the judiciary may be the wrong place for this question. On the excellent Lawfare blog, several experts, including Kenneth Anderson of American University, point out that injecting federal courts into executive branch decisions about warfighting would violate the Constitution.

That doesn’t mean independent review of the kill list isn’t possible. An executive branch official could do it -- a “death czar.” (Perhaps that title doesn’t strike the right note.) Congress could do it, if it had the stomach. Or, as Sen. Paul suggested, the administration could try suspected terrorists for treason. Treason is in the Constitution; it even carries the death penalty. Treason trials sound like an antiquated idea -- but they might be a refreshingly clear solution.